[43 Pa.B. 2010]
[Saturday, April 13, 2013]
[Continued from previous Web Page] Rule 3.16. Pleading More Than One Cause of Action; Alternative Pleadings.
(a) More than one cause of action may be stated in a Pleading. Each cause of action shall be stated in a separate count, preceded by a heading, and the count shall name the parties to that cause of action and shall contain a separate request for relief.
(b) Causes of action and defenses may be pleaded in the alternative.
Official Note: Rule 3.16 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. 1020.
Service of Legal Papers Rule 3.17. Service of Legal Papers Other than Citations or Audit Notices.
(a) Copies of all Pleadings, and any brief or memorandum of law in connection therewith, other than audit notices served pursuant to Rule 2.5 or citations served pursuant to Rule 3.5(a), filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made:
(1) by handing, or mailing by first-class United States mail, postage prepaid, a copy to, or leaving a copy for, each party at the address of the party's counsel of record listed on an entry of appearance or prior Pleading of the party, or at such other address as a party may agree, or
(2) by transmitting a Facsimile copy to the party's counsel of record as provided by subparagraph (c), or
(3) by electronic transmission in accordance with Rule 8.1(h).
(b) If there is no attorney of record,
(1) Service shall be made by handing a copy to the party or by mailing a copy to, or leaving a copy for, the party at the address listed on an entry of appearance or prior Pleading or the residence or place of business of the party, or by transmitting a Facsimile copy as provided by subparagraph (c) or by electronic transmission in accordance with Rule 8.1(h).
(2) If such service cannot be made, service shall be made by leaving a copy at, or mailing a copy to, the last known address of the party to be served.
(c)(1) A Facsimile copy may be served or a copy transmitted electronically if the parties agree thereto or if a facsimile telephone number and/or email address is included on an entry of appearance or prior Legal Paper filed with the Court.
(2) A Facsimile copy shall begin with a facsimile cover sheet containing:
(i) the name, firm, address, telephone number, of both the party making service and the party served,
(ii) the facsimile telephone number of the party making service and the facsimile telephone number to which the Facsimile copy was transmitted,
(iii) the title of the Legal Paper served, and
(iv) the number of pages transmitted.
(3) Service is complete when transmission is confirmed as complete.
(d) The Court may order notice by Publication in accordance with Pa. R.C.P. 430.
Official Note: Rule 3.17 has no counterpart in former Orphans' Court Rules, but is based on Pa.R.C.P. 440 with modifications.
Explanatory Comment The Notes and the Explanatory Comment appearing after Pa.R.C.P. 440 are fully incorporated by reference herein.
Rule 3.18. Notice or Citation to Individuals and Entities.
(a) Whenever notice or a citation is to be given to an individual:
(1) If the individual is sui juris, or if the individual has reached the age of 18 and is believed to be incapacitated (within the meaning of 20 Pa.C.S. § 5501 et seq.), but for whom no Guardian is known to have been appointed by a Pennsylvania Court or by the court of any other jurisdiction (including a Guardian ad litem with respect to the matter at issue), then such notice or citation shall be provided:
(i) to the individual; or
(ii) if the individual will be represented with respect to the matter at issue by a representative under the provisions of 20 Pa.C.S. §§ 7721—7726, then such notice or citation may instead be provided to such representative, including notice as required by 20 Pa.C.S. § 7725 that each such representative may decline to act as a representative for the sui juris individual.
(2) If the individual is not sui juris, or is unborn, unknown or unascertained, then such notice or citation shall be provided to such individual's representative with respect to the matter at issue under the provisions of 20 Pa.C.S. §§ 751(6) or 7721—7726, including notice required by 20 Pa.C.S. § 7725 that each such representative may decline to act as a representative for the individual; provided, however, that if a Guardian or Trustee ad litem has been appointed to represent such individual by the Court having jurisdiction over the matter at issue, then such notice or citation shall also be provided to the Guardian or Trustee ad litem.
(b) Whenever notice or a citation is to be given to an entity, then such notice or citation shall be provided:
(i) to the entity, through the entity's duly authorized representative; or
(ii) if the entity will be represented with respect to the matter at issue by a representative under the provisions of 20 Pa.C.S. §§ 7721—7726, then such notice or citation may instead be provided to such representative, including notice as required by 20 Pa.C.S. § 7725 that each such representative may decline to act as a representative for the entity.
(c) If counsel has entered an appearance on behalf of an individual, entity or representative who would otherwise receive notice or a citation as provided under subparagraphs (a) and (b), then such notice or citation shall instead be given to counsel, except as provided in Rule 2.5(b) in which the audit notice must be given to both counsel and the individual, entity or representative.
(d) Notwithstanding the foregoing, if the Court having jurisdiction over the matter determines that the representation is or might be inadequate, then the Court may in its discretion direct to whom notice or a citation shall be provided.
Official Note: Rule 3.18 is derived from former Rule 5.2, but has been substantially modified to address virtual representation under 20 Pa.C.S. § 751(6) generally and representation in ''trust matters'' pursuant to 20 Pa.C.S. §§ 7721 et seq. Cf. Rule 2.5(b) for different requirements that the audit notice must be mailed to the individual or entity and to counsel representing such individual or entity.
IV. RULES GOVERNING SPECIFIC TYPES OF PETITIONS Rule
4.1. Declaratory Judgment. 4.2. Family Exemption. 4.3. Intestate Share to Surviving Spouse from Real Estate. 4.4. Revocation, Vacating or Extension of Time for Filing of Surviving Spouse's Election. 4.5. Appointment of a Guardian ad litem or a Trustee ad litem. 4.6. Appointment of a Guardian for the Estate or Person of a Minor. 4.7. Appointment of a Trustee. 4.8. Discharge of Fiduciary and Surety. 4.9. Partition. 4.10. Public Sale of Real Property. 4.11. Private Sale of Real Property or Options Therefor. 4.12. Mortgage or Lease of Real Property. 4.13. Inalienable Property. 4.14. Designation of a Successor Custodian. 4.15. Confirmation of Appointment. Rule 4.1. Declaratory Judgment.
(a) Commencement of Action. An action for declaratory judgment shall be commenced by petition and citation directed to the Interested Parties.
(b) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, the petition shall contain sufficient averments to entitle petitioner to the declaratory relief requested under the Pennsylvania Declaratory Judgments Act including:
(1) a concise statement of the facts relied upon to justify a declaratory judgment proceeding;
(2) the question of law, if any, with respect to which declaratory relief is requested;
(3) identify all Interested Parties; and
(4) a prayer for the relief desired.
(c) Exhibits. A copy of the will, trust, other governing instrument, or any other document to be construed shall be attached to the petition as an exhibit.
(d) Preliminary Decree. If necessary, a form of preliminary decree directing the issuance of a citation to every Interested Party shall be attached to the face of the petition as the first page.
(e) Final Decree. A form of final decree setting forth the declaratory relief shall be attached to the face of the petition and after the preliminary decree if one included with the petition.
Official Note: Rule 4.1 has no counterpart in former Orphans' Court Rules, but is derived from Philadelphia Local Rule 1.2.P.
Rule 4.2. Family Exemption.
(a) In addition to the requirements provided by the Rules in Chapter III, a petition for a family exemption shall set forth the following:
(1) facts establishing a prima facie right of the petitioner to the exemption;
(2) if the exemption is claimed from real estate, a request for the appointment of two appraisers to appraise the same;
(3) a description of the property claimed; and
(4) whether allowance of the claim prior to the audit or confirmation of the Account is requested.
(b) The manner of appraising the property, of filing and confirming the appraisal, and of advertising or giving notice thereof shall be prescribed by Local Rules.
(c) The Court may, at the request of the petitioner, award in distribution, specific real estate included in the Account in satisfaction of, or on account of, the family exemption without compliance with the procedure outlined in subparagraphs (a)(2), (a)(3), and (b) of this Rule, if all Interested Parties agree in writing that the petitioner is entitled to the family exemption and to the valuation at which such real estate is to be awarded.
Official Note: Rule 4.2 is substantively similar to former Rule 12.1.
Explanatory Comment The Act of 1959, Nov. 10, P. L. 1450 (20 P. S. § 320.211) increased the exemption to $1,000.00 where decedent died after that date. The Act of 1963, June 11, P. L. 124 (20 P. S. § 320.211) added parents as possible claimants. The suggested general language not only avoids exceptions for effective dates but also may obviate future revisions of the Rule should the Legislature continue to expand the scope of the exemption. Subparagraph (c) is an adaptation of a similar provision in Rule 4.3. It would facilitate the award where all Interested Parties are in accord.
Rule 4.3. Intestate Share to Surviving Spouse from Real Estate.
(a) When no Account is filed and all or part of the spouse's intestate share under 20 Pa.C.S. § 2102 is claimed from real estate, the claim shall be presented by petition, which shall conform to the requirements provided by the Rules in Chapter III, and shall set forth the following:
(1) facts establishing a prima facie right of the spouse to the statutory intestate share;
(2) a description of the real estate; and
(3) a request for the appointment of two appraisers to appraise the real estate.
(b) The manner of appraising the property, of filing and confirming the appraisal, and of advertising or giving notice thereof shall be prescribed by Local Rules.
(c) The Court may, at the request of the surviving spouse, award specific real estate in satisfaction of, or on account of, the spouse's statutory intestate share without compliance with the procedure outlined in subparagraphs (a) and (b) of this Rule if all Interested Parties agree in writing that the surviving spouse is entitled to the statutory share and to the valuation at which such real estate is to be awarded.
Official Note: Rule 4.3 is substantively identical to former Rule 12.2 with minor modifications, including replacing the words ''statutory allowance'' and ''allowance'' with ''statutory intestate share'' and ''intestate share'', respectively.
Explanatory Comment Deletion of specific reference to the former statutory allowance of $10,000.00 increased to $20,000.00 allows greater flexibility. The Rule would not have to be amended in the future if the statutory amount should be increased. With the broader language employed there is no longer any need to refer to the specific statutory provisions. As amended, the Rule recognizes the present practice of making the award of real estate in satisfaction of the spouse's allowance a part of the distribution decree when a court accounting is filed. While this Rule will be employed only in a minimum of instances for the foregoing reason and also because of the availability of Section 3546 of the Probate, Estates and Fiduciaries Code, it, nevertheless, is considered advisable to preserve in its altered form as a guide when it is to be employed.
Rule 4.4. Revocation, Vacating or Extension of Time for Filing of Surviving Spouse's Election.
(a) In addition to the requirements provided by the Rules in Chapter III, a petition to revoke or vacate an election of a surviving spouse to take against the will and other conveyances of the decedent shall set forth the following:
(1) the date of the decedent's death, whether his will has been probated and, if so, a reference to the place of recording;
(2) the name and capacity of the Fiduciary of the decedent's estate, if any, and a reference to the record of his appointment;
(3) the names, addresses and relationship, if known, of the other Interested Parties and the nature and the extent of each of their interests;
(4) the names of the Interested Parties who have consented to the revocation or vacating of the election and the names of those who have not consented;
(5) a description and valuation of the decedent's real and personal property affected by the election;
(6) the date and manner of executing the election desired to be revoked or vacated; whether the same has been recorded, registered or filed, and if so, the date and place thereof;
(7) whether the surviving spouse has made or executed and delivered at any place an election contrary to that desired to be revoked or vacated and whether that election has been recorded, registered or filed, and if so, the date and place thereof;
(8) the facts relied upon to justify the revocation or vacating of the election; and
(9) a request for a citation upon the Interested Parties who have not joined in the petition or who have not consented thereto to show cause why the election should not be revoked or vacated.
(b) A petition for the extension of the time in which the surviving spouse may file an election to take against the will and other conveyances shall be filed prior to the expiration of six months as provided in 20 Pa.C.S. § 2210 with the Clerk of the county where decedent's will was probated in such form as Local Rules may prescribe.
(c) Notice of the filing of any petition under this Rule shall be provided to the personal representative of decedent's estate in accordance with Rule 3.5(b)(1).
Official Note: Rule 4.4 is substantively identical to former Rule 12.3, except for the addition of the statutory reference and providing the place for filing the extension of time as is required by 20 Pa.C.S. § 2210.
Rule 4.5. Appointment of a Guardian ad litem or a Trustee ad litem.
(a) On petition of the Accountant or any Interested Party, or upon its own motion, the Court may appoint one or both of the following if the Court considers that the interests of the non sui juris individuals are not adequately represented:
(1) a Guardian ad litem to represent a Minor or a person believed to be incapacitated (within the meaning of 20 Pa.C.S. § 5501 et seq.), but for whom no Guardian of the estate is known to have been appointed by a Pennsylvania Court or by the court of any other jurisdiction; and/or
(2) a Trustee ad litem to represent an absentee, a presumed decedent, or unborn or unascertained persons not already represented by a Fiduciary.
(b) The same person may be appointed as Guardian ad litem and Trustee ad litem when the interests represented are not conflicting. Application for such an appointment may be made in one petition.
(c) In addition to the requirements provided by the Rules in Chapter III, the petition shall set forth the following:
(1) the name, age and address of the Minor or person believed to be incapacitated (within the meaning of 20 Pa.C.S. § 5501 et seq.), but for whom no Guardian of the estate is known to have been appointed;
(2) the relationship, if any, of such non sui juris individual to any Interested Party and to the decedent or settlor;
(3) the interest of such non sui juris individual in the property or in the matter at issue;
(4) the provisions of any instrument creating such interests;
(5) the necessity for such interests to be represented by a Guardian ad litem or a Trustee ad litem; and
(6) the proceedings in which such non sui juris individual are to be represented.
(d) A decree appointing a Guardian ad litem or a Trustee ad litem shall specify the period or proceedings during which the Guardian or Trustee ad litem shall act as such.
Official Note: Rule 4.5 is substantively identical to former Rule 12.4, with some modifications to provide for person believed to be incapacitated within the meaning of 20 Pa.C.S. §§ 5501 et seq., but not yet adjudicated as such or for whom no Guardian is known to have been appointed.
Rule 4.6. Appointment of a Guardian for the Estate or Person of a Minor.
(a) A petition for the appointment of a Guardian for the estate or person of a Minor shall be filed by the Minor, if he or she is fourteen years of age or older, and if under such age, by his or her parents, the person with whom he or she resides, the person by whom he or she is maintained, or by any person as next friend of the Minor.
(b) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, the petition shall set forth the following:
(1) the name, address and age of the Minor, and the names and addresses of his or her parents, if living;
(2) the name, address and relationship of the petitioner to the Minor, if the petition is not filed by the Minor;
(3) whether the Minor's parents consent to the petition, if the petition is not being filed by the Minor's parents;
(4) the need for the appointment of a Guardian;
(5) that the Minor has no Guardian presently appointed or that a Guardian already appointed has died or has been discharged or removed by the Court, together with the date of such death, discharge or removal and a reference to the Court order discharging or removing the previously appointed Guardian;
(6) the name, address and age of the proposed Guardian and his or her relationship to the Minor, if any;
(7) the nature of any interest of the proposed Guardian adverse to that of the Minor including, inter alia, a reference to any estate in which the Minor is interested and in which the proposed Guardian is a Fiduciary or surety or employee of a Fiduciary or surety therein;
(8) if the petition is for the appointment of a Guardian of the person, the religious persuasion of the Minor's parents and the religious persuasion of the proposed Guardian;
(9) if the petition is for the appointment of a Guardian of the estate of the Minor, an itemization of the assets of such estate, their location, approximate value and income, if any;
(10) if the Minor is entitled to receive any money as a party to any action or proceeding in any court, a reference to the court record and the amount to which the Minor is entitled; and
(11) that notice has been given to the United States Veterans' Administration or its successor, if the Minor is the child of a veteran and insurance or other gratuity is payable to him or her by the United States Veterans' Administration, or its successor.
(c) Exhibits. The following shall be attached to the petition:
(1) the proposed Guardian's written consent to the appointment; and
(2) the Minor's parents written consents to the petition if they are not the petitioners and if they consent to the petition.
(d) If the appointment of the same person is requested as Guardian of the estates or persons of several Minors who are children of the same parent(s), a single petition shall be filed for such appointments, but shall include in the caption separate dockets numbers for each Minor.
(e) If the Minor is fourteen years of age or older, the Minor's appearance in Court at the time of the hearing shall be governed by Local Rule.
Official Note: Rule 4.6 is substantively identical to former Rule 12.5, except clarifying that separate docket numbers must be assigned to each Minor.
Explanatory Comment Although a single petition may be filed for the appointment of the same person as Guardian of the estates or persons of several Minors, separate Accounts must be filed for the estate of each Minor. See Rule 2.3.
Rule 4.7. Appointment of a Trustee.
(a) Contents of Petition. A petition for the appointment of a trustee may be filed by a resigning trustee, the current trustee or any trust beneficiary and shall conform to the requirements provided by the Rules in Chapter III and set forth the following:
(1) the situs of the trust and if any Court previously has exercised jurisdiction over the trust;
(2) the provisions of the instrument creating the trust;
(3) the general character, location, and value of the trust property;
(4) the reasons why any individual or corporation named in the trust instrument as trustee or successor trustee is unable or unwilling to serve;
(5) the names, addresses and relationships of all trust beneficiaries and that those who have not joined in or consented to the petition have been given notice of the filing of the petition, or the reason for failing to give any qualified beneficiary such notice;
(6) if the trust includes a charitable interest for which notice is required under Rule 7.1, whether the Office of the Attorney General has been given notice, or the reason for failing to give the Office of the Attorney General such notice, and whether the Office of the Attorney General has issued a statement of no objection to the petition; and
(7) the name and address of the proposed trustee and his or her relationship, if any, to any Interested Party; and
(8) whether the proposed trustee has any interest in the trust.
(b) Exhibits. The following shall be attached to the petition:
(1) a copy of the trust instrument;
(2) the signed written consents of all qualified beneficiaries as defined in § 7703 who have not signed or joined in the petition, but who consent to the appointment of the proposed trustee;
(3) the statement of no objection from the Office of the Attorney General if the trust includes a charitable interest for which notice is required under Rule 7.1; and
(4) The proposed trustee's written consent to the appointment.
Official Note: Rule 4.7 is derived from former Rule 12.6, but it has been modified to reflect the additions and changes required by 20 Pa.C.S. §§ 7764.
Rule 4.8. Discharge of Fiduciary and Surety.
(a) Account Previously Filed. A petition for the discharge of a Fiduciary and his or her surety, or of the surety alone, subsequent to an Account having been filed and confirmed, shall conform to the requirements provided by the Rules in Chapter III and set forth the following:
(1) the nature of the Fiduciary capacity;
(2) the date and a reference to the record of the Fiduciary's appointment;
(3) the date of filing the Fiduciary's Account and the date of the Court's adjudication or order confirming the Account absolutely; and
(4) that the entire estate has been distributed to the creditors and parties entitled thereto and that no other property belonging to the estate has been received or remains to be accounted for by the Fiduciary.
(b) Account Annexed. In lieu of filing and advertising an Account, a Personal Representative who is distributing an estate under the provisions of 20 Pa.C.S. § 3531, or the Guardian of the estate of a Minor who has attained Majority and whose gross estate does not exceed the statutory limitation of an administration without appointment of a Guardian, may annex an Account to the petition for discharge with the information required above, modified to indicate any previous distribution, and suggesting the proper distribution of any balance on hand.
Official Note: Rule 4.8 is substantively identical to former Rule 12.7.
Explanatory Comment Pursuant to Rule 2.8(b), an adjudication of an Account discharges the Fiduciaries as to the transactions set forth in the adjudicated Account.
Rule 4.9. Partition.
In addition to the requirements provided by the Rules in Chapter III, a petition for partition shall set forth the following:
(a) the date of the decedent's death and whether he or she died testate or intestate, in whole or in part;
(b) a description, giving the size and location, of the property to be partitioned, the liens and charges to which it is subject and the rents due from tenants thereof, and that the property has not been partitioned or valued for partition;
(c) the names, addresses and relationship of those interested in the land to be partitioned, the extent of the interest of each of such person, and, if such interest is created by a recorded deed or will, a reference to such record; and
(d) a request for a citation upon the Interested Parties who have not joined as petitioners to appear and show cause why an inquest in partition should not be granted.
Official Note: Rule 4.9 is substantively identical to former Rule 12.8.
Rule 4.10. Public Sale of Real Property.
(a) In addition to the requirements provided by the Rules in Chapter III, a petition for the public sale of real property shall set forth the reason for filing the petition, a description, stating the size and location of the property to be sold, and the liens and charges to which it is subject.
(b) Public notice of the sale shall be given as required by law and as may be further required by the Court by Local Rule or special order.
Official Note: Rule 4.10 is substantively identical to former Rule 12.9.
Rule 4.11. Private Sale of Real Property or Options Therefor.
(a) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, a petition for the private sale or exchange of real property, or for the grant of an option for any such sale or exchange shall set forth the following:
(1) the information required in a petition for the public sale of real property under Rule 4.10(a); and
(2) the name and address of the proposed purchaser and the terms of the proposed sale, exchange or option, the consideration therefor, and that this is more than can be obtained at public sale.
(b) Exhibits. The petition shall be supported by the affidavits of at least two competent persons setting forth that they have inspected the real property to be sold, exchanged or optioned and, in the case of an exchange, the property to be received, that they are acquainted with the value of real estate in the locality of such property, that they are not personally interested in the proposed sale, exchange or option, and that in their opinion the proposed consideration is more than can be obtained at public sale.
Official Note: Rule 4.11 is substantively identical to former Rule 12.10.
Rule 4.12. Mortgage or Lease of Real Property.
In addition to the requirements provided by the Rules in Chapter III, a petition to mortgage or lease real property shall set forth the following:
(a) the information required in a petition for the public sale of real property, as nearly as may be; and
(b) the name of the proposed mortgagee or lessee and the terms of the proposed mortgage or lease.
Official Note: Rule 4.12 is substantively identical to former Rule 12.11.
Rule 4.13. Inalienable Property.
In addition to the requirements provided by the Rules in Chapter III, a petition under Chapter 83 of the Probate, Estates and Fiduciaries Code to sell real property at public or private sale or to mortgage real property shall set forth the facts required by 20 Pa.C.S. § 8301, as applicable, and the following:
(a) the names of all Interested Parties who have not joined as petitioners or provided their consent to the petition, and their addresses, if known; and
(b) if the petition is for the public or private sale of real property subject to a life estate with remainder over and the real property is not held in trust, the petition shall request the appointment of a named trustee to make the sale and hold the proceeds in trust.
Official Note: Rule 4.13 is substantively identical to former Rule 12.12.
Rule 4.14. Designation of a Successor Custodian.
A petition for the designation of a successor custodian under the Pennsylvania Uniform Gifts to Minors Act shall conform to the requirements provided by the Rules in Chapter III and set forth as far as practicable the information required in a petition for the appointment of a Guardian of the estate of a Minor.
Official Note: Rule 4.14 is substantively identical to former Rule 12.13.
Rule 4.15. Confirmation of Appointment.
(a) Contents of Petition. Where a trustee is appointed pursuant to a trust instrument or by the unanimous agreement of all qualified beneficiaries as defined in 20 Pa.C.S. § 7703, a petition for the Court to confirm such appointment shall conform to the requirements provided by the Rules in Chapter III and shall set forth the following:
(1) the reason for filing the petition; and
(2) the pertinent provisions of the instrument creating the trust and providing for the appointment of the trustee.
(b) Exhibits. The following shall be attached to the petition:
(1) a copy of the trust instrument duly certified by counsel to be a true and correct copy; and
(2) the designated trustee's written consent to service.
Official Note: Rule 4.15 is substantively identical to former Rule 12.14.
V. GUARDIANSHIPS OF INCAPACITATED PERSONS Rule
5.1. Form of Citation and Notice. 5.2. Adjudication of Incapacity and Appointment of a Guardian of the Person and/or Estate of an Incapacitated Person. 5.3. Review Hearing. 5.4. Proceedings Relating to Real Estate. Rule 5.1. Form of Citation and Notice.
The citation and notice to be attached to and served with a petition for adjudication of incapacity and the appointment of a Guardian shall be in the form approved by the Supreme Court.
Official Note: Former Rules under Rule 14 (i.e., Rule 14.1 et seq.) have been relocated to this Chapter V. Rule 5.1 is substantively identical to former Rule 14.5, except that the notice and citation must be in the form approved by the Supreme Court and not in a substantially similar form. See Rule 1.8. Former Rule 14.1 has been deleted as it was a restatement of what is already provided in Rule 1.5.
Explanatory Comment The Supreme Court has adopted forms for use in guardianship proceedings which are contained in the Appendix. The form of citation and notice found in the body of former Rule 14.5 have been moved to the Appendix. As of 2011, these forms are the Annual Report of Guardian of the Estate, Annual Report of Guardian of the Person, and Important Notice—Citation with Notice. In accordance with Rule 1.8, these forms must be used exclusively; local forms are not permitted to replace or supplant these forms.
Rule 5.2. Adjudication of Incapacity and Appointment of a Guardian of the Person and/or Estate of an Incapacitated Person.
A petition to adjudicate an individual as an Incapacitated Person shall meet all requirements set forth at 20 Pa.C.S. § 5511 et seq. A citation and notice in the form adopted by the Supreme Court shall be attached to and served with a petition. The procedure for determining incapacity and for appointment of a Guardian shall meet all requirements set forth at 20 Pa.C.S. §§ 5512 and 5512.1.
Official Note: Rule 5.2 is identical to former Rule 14.2; it has simply been relocated to Chapter V of these Rules.
Explanatory Comment The Supreme Court has promulgated a form notice to be served with the citation and petition to adjudicate an individual as incapacitated. This form notice is located in the Appendix. In accordance with Rule 1.8, this form notice must be used exclusively and replaced or supplanted by a local form.
Rule 5.3. Review Hearing.
A petition for a review hearing shall set forth:
(a) the date of the adjudication of incapacity;
(b) the name and address of the Guardian;
(c) if the Incapacitated Person has been a patient in a mental hospital, the name of such institution, the date of admission, and the date of discharge;
(d) the present address of the Incapacitated Person, and the name of the person with whom the Incapacitated Person is living;
(e) the names and addresses of the presumptive Adult heirs of the Incapacitated Person; and
(f) an averment that:
(1) there has been significant change in the Incapacitated Person's capacity;
(2) there has been a change in the need for guardianship services; or
(3) the Guardian has failed to perform duties in accordance with the law or act in the best interest of the Incapacitated Person.
Official Note: Rule 5.3 is identical to former Rule 14.3; it has simply been relocated to Chapter V of these Rules.
Explanatory Comment For the Court's disposition of a petition for a review hearing and evidentiary burden of proof, see 20 Pa.C.S. § 5512.2.
Rule 5.4. Proceedings Relating to Real Estate.
A petition for the public or private sale, exchange, lease, or mortgage of real estate of an Incapacitated Person or the grant of an option for the sale, exchange or lease of the same shall conform as far as practicable to the requirements of these Rules for Personal Representatives, trustees and Guardians of Minors in a transaction of similar type.
Official Note: Rule 5.4 is identical to former Rule 14.4; it has simply been relocated to Chapter V of these Rules.
VI. RULES RELATING TO PRE-HEARING AND HEARING PROCEDURE Rule
6.1. Depositions, Discovery, Production of Documents and Perpetuation of Testimony. 6.2. Motion for Judgment on the Pleadings. 6.3. Motion for Summary Judgment. 6.4. Subpoenas and Notices to Attend. 6.5. Injunctions. Rule 6.1. Depositions, Discovery, Production of Documents and Perpetuation of Testimony.
The Court, by Local Rule or special order, may prescribe the practice relating to depositions, discovery, production of documents and perpetuation of testimony. To the extent not provided for by such Local Rule or special order, the practice relating to such matters shall conform to the practice in the Trial or Civil Division of the local Court of Common Pleas and Pa. R.C.P. 1532 and 4001 et seq.
Official Note: Rule 6.1 is identical to former Rule 3.6; it has simply been relocated to Chapter VI of these Rules.
Rule 6.2. Motion for Judgment on the Pleadings.
After the relevant Pleadings are closed, but within such time as not to unreasonably delay the hearing, any party may move for judgment on the Pleadings. The Court shall enter such judgment or order as shall be proper on the Pleadings.
Official Note: Rule 6.2 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. 1034.
Explanatory Comment The Official Note to Pa.R.C.P. 1034 is fully incorporated by reference herein, except that the Court may, but is not required to, promulgate Local Rules governing the procedure for these motions.
Rule 6.3. Motion for Summary Judgment.
(a) After the relevant Pleadings are closed, but within such time as not to unreasonably delay a hearing, any party may move for summary judgment in whole, or in part, as a matter of law in the manner set forth in Pa.R.C.P. 1035.1, 1035.2, and 1035.4.
(b) The party against whom the motion for summary judgment is filed shall respond in accordance with Pa.R.C.P. 1035.3(a)—(b) and 1035.4, except that a responsive Pleading shall be filed within 20 days after service of the motion, not 30 days as provided in Pa.R.C.P. 1035.3(a).
(c) The Court shall rule upon the motion for summary judgment as provided in Pa.R.C.P. Nos. 1035.3(c)—(e) and 1035.5.
Official Note: Rule 6.3 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. 1035.1. et seq.
Explanatory Comment In order to be consistent with Rules 2.5, 2.8, 3.5, 3.7, and 3.9, the period of time to respond to a motion for summary judgment is shortened from the thirty days permitted under Pa.R.C.P. 1035.3(a) to twenty days. The Notes, Official Note and Explanatory Comments to Pa.R.C.P. 1035.1 et seq. are incorporated by reference herein, except that the Court may, but is not required to, promulgate Local Rules governing the procedure for these motions.
Rule 6.4. Subpoenas and Notices to Attend.
Subject to Rule 6.1, parties can be noticed to attend a deposition pursuant to Pa.R.C.P. 4007.1(a) and third parties can be compelled to attend a hearing or deposition in accordance with Pa.R.C.P. 234.1 through 234.9.
Official Note: Rule 6.4 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. 234.1 et seq.
Explanatory Comment The procedure for obtaining a subpoena shall conform to the practice set forth in Pa.R.C.P. No. 234.1 et seq. The Notes, Official Notes, and Explanatory Comments to Pa.R.C.P. Nos. 234.1 et seq. are fully incorporated by reference herein.
Rule 6.5. Injunctions.
Upon petition, the Court may issue a preliminary, special, or permanent injunction in accordance with the rules and procedures provided in Pa.R.C.P. 1531.
Official Note: Rule 6.5 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. 1531.
Explanatory Comment With the repeal of 20 Pa.C.S. § 772, the propriety of and procedure for obtaining an injunction in an Orphans' Court matter was uncertain. This Rule clarifies that an injunction may be requested and issued in this Court. The procedure for requesting the issuance of an injunction shall conform to the practice set forth in Pa.R.C.P. 1531. The Notes and Explanatory Comments to Pa.R.C.P. Nos. 1531 are fully incorporated by reference herein.
VII. CHARITIES—NOTICE TO ATTORNEY GENERAL Rule
7.1. Charities—Notice to the Attorney General. Rule 7.1. Charities—Notice to the Attorney General.
(a) In every proceeding involving or affecting a charitable interest with the exception hereinafter set forth, at least 20 days advance written notice thereof shall be given to the Attorney General of the Commonwealth of Pennsylvania at the principal office in Harrisburg, Pennsylvania, or to a deputy of the Attorney General designated for such purpose for the judicial district in which the proceeding is pending. The notice shall include or be accompanied by such of the following as may be appropriate
(1) the caption of the case;
(2) a description of the nature of the proceeding;
(3) the date, time and place when the matter is to be heard by the Court to the extent then known;
(4) the name of the decedent, settlor, Incapacitated Person or Minor, if not disclosed by the caption;
(5) a copy of the will or other instrument creating the charitable interest;
(6) the name and address of any specific charity which may be affected by the proceeding;
(7) if the charitable interest is a present interest, a description and the approximate market value of that interest;
(8) if the charitable interest is a future interest and the estimated present value of the property involved exceeds $25,000, a brief description thereof including the conditions precedent to its vesting in enjoyment and possession, the names and ages of persons known to have interests preceding such charitable interest, and the approximate market value of the property involved;
(9) a description of any unresolved claim and any material question of interpretation or distribution likely to be submitted for adjudication which may affect the value of the charitable interest;
(10) the names and addresses of all Fiduciaries;
(11) the name and address of counsel for the Fiduciary;
(12) the name and address of counsel for any charity who has received notice or has appeared for the charity and the name of the charity which counsel represents; and
(13) a copy of an Account, if the proceeding involves an Account and the charity is not a pecuniary legatee in an amount of $25,000 or less which has been or will be paid in full.
(b) Proof of service of the above notice or an acknowledgment of such notice received from the Attorney General or a deputy of the Attorney General shall be filed with the Clerk in every proceeding involving a charitable interest prior to the entry of any decree.
(c) Unless the Court directs otherwise, no notice to the Attorney General or a deputy of the Attorney General shall be required with respect to a pecuniary legacy to a charity in the amount of $25,000 or less which has been or will be paid in full.
Official Note: This Rule is substantively identical to former Rule 5.5; it has simply been relocated to Chapter VII of these Rules.
Explanatory Comment See Appendix for form of notice under this Rule.
VIII. ELECTRONIC FILING Rule
8.1. Electronic Filing and Service of Legal Papers. Rule 8.1. Electronic Filing and Service of Legal Papers.
(a) Authorization for Electronic Filing.
(1) A Court may permit or require Electronic Filing of Legal Papers. Any Court that implements Electronic Filing shall establish procedures governing such filing by Local Rule which shall be consistent with the procedures set forth herein.
Explanatory Note: Those jurisdictions which require e-filing must also provide the necessary technical assistance to those parties who lack the capacity to electronically file Legal Papers.
(2) This Rule does not mandate the implementation of Electronic Filing by a Court.
(b) Electronic Filing of Legal Paper.
(1) A Filing Party may file a Legal Paper with the Clerk by means of Electronic Filing.
(2) Legal Papers and exhibits shall be filed in portable document format (.pdf).
(3) Exhibits to a Legal Paper shall be converted to portable document format (.pdf) by scanning or other method.
(4) Any party may require the Filing Party to file the original or a hard copy of a Legal Paper or exhibit by filing a notice to file with the Clerk and serving a copy of the notice upon the Filing Party. The Filing Party shall file the specified document with the Clerk within 14 days after service of the notice. Upon disposition of the matter before the Court, an original document may be returned to the party who filed it or retained by the Court, as the Court may determine.
(c) Signature, Verification and Retention of Legal Paper.
(1) The original Legal Paper shall be properly signed, and where required, Verified.
(2) The Electronic Filing of a Legal Paper constitutes a certification by the Filing Party that the original document was signed, and where applicable, Verified.
(3) Unless retained by the Court, the Filing Party shall maintain the original of all documents so certified, together with any exhibits filed, for 5 years after the later of:
(i) the disposition of the case;
(ii) the entry of an order resolving the issue raised by the Legal Paper; or
(iii) the disposition by an appellate court of the issue raised by the Legal Paper.
(d) Website and Filing Date.
(1) The Court shall designate a website for the Electronic Filing of Legal Papers. A user name and password shall be issued to authorized users.
(2) The Court shall provide Electronic Filing access at all times. The time and date of the filing shall be that registered by the Court's computer system.
(3) The Court shall provide, through its website, an acknowledgement that the filing has been processed. Such acknowledgement shall include the date and time of filing in a form which can be printed for retention by the Filing Party.
(e) Delay in Filing. A Filing Party shall be responsible for any delay, disruption, or interruption of electronic transmission, and for the legibility of the document electronically filed, except for delays caused by the failure of the Court's website. The Filing Party may petition the Court to resolve any dispute concerning an alleged failure of the Court's website.
(f) Fees.
(1) A Filing Party shall pay the fee for electronically filing a Legal Paper as provided by the Court.
(2) The Court may assess an additional automation fee for each Legal Paper electronically filed which shall be used for the development, implementation, maintenance, and training in the use of the Court Electronic Filing system and other related uses.
(g) Local Procedures. The Court may develop further administrative procedures, as needed, to implement this Rule and to provide for security of the Electronic Filing system, as required by changing technology.
(h) Service of Legal Papers by Parties.
(1) Service of original process shall not be permitted by electronic means, unless agreed to by the respondent.
(2) Service of subsequent Legal Papers may be effected by electronic transmission if the parties agree, or if an email address appears on an entry of appearance, or other Legal Paper previously filed with the Court in the action. Electronic service is complete when the Legal Paper is sent to the recipient's email address, or when the recipient is notified by email that a Legal Paper affecting the recipient has been filed and is available for review on the Court's website.
(i) Service of Legal Papers by Court and Clerk. The Clerk and the Court may serve all notices, opinions, and orders via electronic means where the parties have agreed to receipt of Legal Papers by electronic transmission, or if the underlying Legal Papers related to the notice, opinion or order were filed by Electronic Filing, or if an email address appears on an entry of appearance or other Legal Paper previously filed with the Court in the action.
Official Note: Rule 8.1 is substantively identical to former Rule 3.7, but has been relocated to Chapter VIII of these Rules.
Explanatory Comment Subparagraph (i) of Rule 8.1 differs from its counterpart in former Rule 3.7 in two respects: first, this subparagraph permits the Clerk and Court to serve not only notices, but also opinions and orders, via electronic means; and second, it provides that the Clerk and Court are able to send its notices, opinions, and orders via electronic means if the underlying Legal Papers were filed electronically.
Explanatory Note: This Rule is designed as a general enabling mechanism by which local judicial districts can, if they so choose, implement Electronic Filing. Implementation procedures not inconsistent with this Rule will be determined by Local Rules of Court.
Nothing in this Rule is intended to change the procedural requirements of Orphans' Court practice, as embodied in the statutes and rules of Court. Rather this Rule is intended to facilitate the delivery of Legal Papers to the Court and the parties, as well as to reduce record management burdens in the office of the Clerk. The terms ''Electronic Filing,'' ''Filing Party,'' and ''Legal Paper'' are defined in Rule 1.3.
The Court may, from time to time, modify the approved Electronic Filing system to take into consideration the costs and security of the system and the maintenance of electronic data and images.
Existing procedures regarding record retention for paper documents by the Clerk shall apply to electronically filed documents. A local Court which permits Electronic Filing may require filing and maintenance of paper documents or exhibits; it may also accept paper documents, convert such documents to electronic format, and destroy the paper documents. (See Record Retention & Disposition Schedule with Guidelines, adopted by the Supreme Court of Pennsylvania by Order, dated November 28, 2001, as part of the amendment to Pa.R.J.A. 507).
IX. PETITION FOR RECONSIDERATION Rule
9.1. Exceptions. 9.2. Petitions for Reconsideration. Rule 9.1. Exceptions.
No exceptions may be filed to any order or decree of the Court.
Explanatory Comment The former exception practice is discontinued.
Rule 9.2. Petitions for Reconsideration.
A Court, upon petition, may reconsider orders that are final under Pa.R.A.P. 341(b) or 342, or interlocutory orders subject to immediate appeal under Pa.R.A.P. 311, so long as the order granting reconsideration is consistent with Pa.R.A.P. 1701(b)(3). A Court, upon petition, may reconsider an interlocutory order at any time.
Official Note: The period for filing an appeal is not tolled by the filing of a petition for reconsideration unless the Court grants the petition for reconsideration prior to the expiration of the appeal period. See R.A.P. 1703(b)(3). Interlocutory orders may be reconsidered anytime during the pendency of the proceeding. See Key Automotive Equip. v. Abernethy, 431 Pa. Super. 358, 362, 636 A.2d 1126, 1128 (1994); 42 Pa.C.S.A. § 5505.
X. AUDITORS AND MASTERS Rule
10.1. Notice of Hearings. 10.2. Filing of Report. 10.3. Form of Auditor's Report. 10.4. Form of Master's Report. 10.5. Transcript of Testimony. 10.6. Notice of Filing Report. 10.7. Confirmation of Report. 10.8. Security for Expenses and Fees. Rule 10.1. Notice of Hearings.
An auditor or master shall give notice of scheduled hearings in such manner and to such parties as Local Rules shall prescribe.
Official Note: Rule 10.1 is substantively identical to former Rule 8.1; it has simply been relocated to Chapter X of these Rules.
Rule 10.2. Filing of Report.
An auditor or master shall file his or her report within 90 days after his or her appointment, unless, upon application, the Court extends the time; and, in default thereof, his or her appointment may be vacated and compensation and reimbursement for services and expenses denied.
Official Note: Rule 10.2 is substantively identical to former Rule 8.2; it has simply been relocated to Chapter X of these Rules.
Rule 10.3. Form of Auditor's Report.
An auditor's report shall include a statement of the questions involved, findings of fact, conclusions of law, and, if the Account is approved by the auditor, it shall also expressly confirm the Account and shall specify, or indicate by reference to the Statement of Proposed Distribution, the names of the persons to whom the balance available for distribution is awarded and the amount or share awarded to each of such persons.
Official Note: Rule 10.3 is identical to former Rule 8.3; it has simply been relocated to Chapter X of these Rules.
Rule 10.4. Form of Master's Report.
A master's report shall state the number, times, dates and duration of the hearings held, the number, extent and causes of any delays or continuances, and the basis of the Court's jurisdiction, and shall include a statement and discussion of the questions involved, findings of fact and conclusions of law, and specific recommendations.
Official Note: Rule 10.4 is identical to former Rule 8.4; it has simply been relocated to Chapter X of these Rules.
Rule 10.5. Transcript of Testimony.
The transcript of testimony taken before an auditor or master shall be filed with the report.
Official Note: Rule 10.5 is identical to former Rule 8.5; it has simply been relocated to Chapter X of these Rules.
Rule 10.6. Notice of Filing Report.
An auditor or master shall give notice of the filing of the report or of the intention to file the report in such manner and to such parties as Local Rules shall prescribe.
Official Note: Rule 10.6 is identical to former Rule 8.6; it has simply been relocated to Chapter X of these Rules.
Rule 10.7. Confirmation of Report.
(a) The report of an auditor shall be confirmed in such manner as Local Rules shall prescribe.
(b) The report of a master shall not be approved until a decree is entered adopting its recommendations.
Official Note: This Rule is identical to former Rule 8.7; it has simply been relocated to Chapter X of these Rules.
Rule 10.8. Security for Expenses and Fees.
An auditor or master, the Accountant, or any Interested Party may apply to the Court at any time for leave to require security for the payment of the auditor's or master's expenses and fees, and, when such leave is granted, the auditor or master may decline to proceed until security is entered.
Official Note: Rule 10.7 is substantively identical to former Rule 8.8; it has simply been relocated to Chapter X of these Rules.
XI. REGISTER OF WILLS Rule
11.1. Forms. 11.2. Petition Practice. 11.3. Hearings. 11.4. Appeals from the Register of Wills. 11.5. Notice to Beneficiaries and Intestate Heirs. 11.6. Status Report by Personal Representative. Rule 11.1. Forms.
The forms adopted by the Supreme Court for statewide practice before the Register as set forth in the Appendix shall be used when applicable. No other forms shall be allowed or required by Local Rule or practice.
Rule 11.2. Petition Practice.
When a matter requires the Register to exercise discretion or decide an issue of fact or law, the Pleading and practice shall conform as near as practical to the practice and procedure before the Court as provided by Chapter III of these Rules and 20 Pa.C.S. § 906 (relating to caveats). The Register may issue a citation if appropriate, and may require a party to prepare the form of citation. Service of citations issued by the Register shall be the responsibility of the party requesting the issuance of the citation.
Rule 11.3. Hearings.
(a) Evidentiary hearings before the Register shall be recorded by stenographic or electronic means, the cost of which shall paid by the party initiating the matter unless otherwise directed by the Register.
(b) The Register may issue subpoenas to compel attendance at evidentiary hearings as provided in 20 Pa.C.S. § 903(a).
(c) The Pennsylvania Rules of Evidence shall be applicable to all evidentiary hearings before the Register.
(d) The Register may require parties to submit memoranda and/or proposed findings of fact and conclusions of law.
(e) The Register shall promptly decide the matter at issue by written order or decree. The order or decree may, but need not, contain a brief opinion or recitation of relevant facts and legal conclusions as found by the Register.
Rule 11.4. Appeals from the Register of Wills.
Appeals to the Court from an order or decree of the Register of Wills shall be by petition and governed by Chapter III of these Rules and any applicable Local Rules.
Rule 11.5. Notice to Beneficiaries and Intestate Heirs.
(a) Within three (3) months after the grant of letters, the Personal Representative to whom original letters have been granted or the Personal Representative's counsel shall send a written notice of estate administration in the form approved by the Supreme Court to:
(1) every person, corporation, association, entity or other party named in decedent's will as an outright beneficiary whether individually or as a class member;
(2) the decedent's spouse and children, whether or not they are named in, or have an interest under, the will;
(3) where there is an intestacy in whole or in part, to every person entitled to inherit as an intestate heir under Chapter 21 of the Probate, Estate and Fiduciaries Code;
(4) the appointed Guardian of the estate, parent or legal custodian of any beneficiary who is a Minor;
(5) the appointed Guardian of the estate or, in the absence of such appointment, the institution or person with custody of any beneficiary who is an adjudicated Incapacitated Person;
(6) the Attorney General on behalf of any charitable beneficiary whose interest exceeds $25,000 or which will not be paid in full;
(7) the Attorney General on behalf of any governmental beneficiary;
(8) the trustee of any trust which is a beneficiary; and
(9) such other persons and in such manner as may be required by any Local Rule of Court.
(b) ''Beneficiary'' shall be deemed to include any person who may have an interest by virtue of the Pennsylvania anti-lapse statute, 20 Pa.C.S. § 2514.
(c) Notice shall be given by personal service or by first-class, prepaid mail to each person and entity entitled to notice under subdivision (a)(1)—(9) whose address is known or reasonably available to the Personal Representative.
(d) Within ten (10) days after giving the notice required by subdivision (a) of this Rule, the Personal Representative or the Personal Representative's counsel shall file with the Register a certification that notice has been given as required by this Rule. No fee shall be charged by the Register for filing the certification required by this subdivision.
(e) Upon the failure by the Personal Representative or the Personal Representative's counsel to file the certification on a timely basis, the Register shall, after ten (10) days prior written notice to the delinquent Personal Representative and his counsel, notify the Court of such delinquency.
(f) This Rule shall not alter or diminish existing rights or confer new rights.
(g) The Register shall deliver a copy of Rule 5.6 and the forms of notice and certification approved by the Supreme Court to each Personal Representative and counsel at the time letters are granted.
Official Note: Rule 11.5 is identical to former Rule 5.6; it has simply been relocated to Chapter XI of these Rules. The form of notice and certification of notice required by Rule 11.5 is set forth in the Appendix.
Explanatory Comment It is not the intention of the Rule to require notice beyond the degree of consanguinity entitling a person to inherit under Chapter 21 of the Probate, Estates and Fiduciaries Code.
Rule 11.6. Status Report by Personal Representative.
(a) Report of Uncompleted Administration. If administration of an estate has not been completed within two years of the decedent's death, the Personal Representative or counsel shall file at such time, and annually thereafter until the administration is completed, a report with the Register of Wills showing the date by which the Personal Representative or counsel reasonably believes administration will be completed.
(b) Report of Completed Administration. Upon completion of the administration of an estate, the Personal Representative or his, her or its counsel shall file with the Register of Wills a report showing:
(1) completion of administration of the estate;
(2) whether a formal Account was filed with the Orphans' Court;
(3) whether a complete Account was informally stated to all parties in interest;
(4) whether final distribution has been completed; and
(5) whether approvals of the Account, receipts, joinders and releases have been filed with the Clerk of the Orphans' Court.
(c) Form of Report. The Report required by this Rule shall be in substantially the prescribed form.
(d) No Fee. No fee shall be charged for filing the report required by this Rule.
(e) Copy of Rule. Upon the grant of letters, the Register shall give a copy of this Rule to each Personal Representative and his, her or its counsel.
(f) Failure to File a Report. After at least ten (10) days prior notice to a delinquent Personal Representative and counsel, the Clerk of the Orphans' Court shall inform the Court of the failure to file the report required by this Rule with a request that the Court conduct a hearing to determine what sanctions, if any, should be imposed.
Official Note: Rule 11.6 is identical to former Rule 6.12; it has simply been relocated to Chapter XI of these Rules. The form of status report required by Rule 11.6 is set forth in the Appendix.
XII. ADOPTIONS (Editor's Note: New Rules were published separately at 41 Pa.B. 2932 (June 11, 2011).)
XIII. ABORTION CONTROL ACT No new rules.
EXPLANATORY REPORT
Proposed New Pa.O.C. Rules 1.1—11.6 & Explanatory Notes Background
In 2006, the Orphans' Court Procedural Rules Committee (''Committee'') began an extensive project to promote uniformity and to standardize the content of forms and pleadings being use across the Commonwealth. To that end, the Committee developed a series of statewide form petitions for adjudication/statements of proposed distribution for various fiduciaries stating Accounts as well as revising and developing Model Accounts for decedent's estates, trusts and charitable remainder unitrusts. The Committee also revised and developed statewide forms for use in guardianships of incapacitated persons and for use before the Registers of Wills. During the Committee's work in developing standardized, statewide forms, the Committee became aware of various and differing procedures among the counties for adjudicating and confirming an Account, for issuing citations, for ensuring notice to interested parties, and for resolving petitions and the issues raised therein. Moreover, the Committee noted that some counties lacked established written procedures for handling certain aspects of Orphans' Court litigation, resulting in unwritten customs or case-by-case determinations. In addition, the repeal of the equity rules in 2003 created a vacuum as Orphans' Court Rule 3.1 provides that in the absence of an applicable Orphans' Court Rule, pleading and practice in Orphans' Court should conform to the pleading and practice in equity.
Given these shortcomings, once the Committee completed its initial promulgation of statewide forms, the Committee began exploring the possibility of revising and amending the current Orphans' Court Rules. The Committee presented a proposal to then-Chief Justice Cappy in the fall of 2007. Justice Cappy not only embraced the proposal, but also appointed a working group of experienced Orphans' Court judges to provide assistance, overview and input. In announcing the Committee's project and the judicial appointments, Chief Justice Cappy explained that the ''intent here is to simplify the current system and standardize governing procedures so everyone has a clearer idea of what is expected and better outcomes are realized for the citizens of Pennsylvania.''
Again, quoting from the News Release issued by the Administrative Office of Pennsylvania Courts on October 17, 2007:
The proposed rule review is intended to:
• Promote standardization of statewide practice and reduce variations caused by reliance on local practice.
• Provide better direction to practitioners and judges throughout the state, especially in counties without dedicated Orphans' Court divisions.
• Clarify certain procedures involving citation practice and pleadings.
• Harmonize Orphans' Court proceedings with general civil practice to the extent possible, given the unique subject matter within Orphans' Court jurisdiction.
This project has continued in earnest for nearly five years. The Committee extends recognition and gratitude to prior Committee Chairs, Judge Calvin S. Drayer and Mary Jane Barrett, Esq., for their leadership and commitment to this project.
The Committee now publishes its proposal and solicits the input, comments and suggestions of practitioners and jurist throughout the Commonwealth, particularly those who practice routinely in the Orphans' Court divisions of various counties.
Proposed new Orphans' Court Rules 1.1 through 11.6
This proposal reorganizes the placement of current Orphans' Court Rules. In brief summary, Chapter I contains introductory rules which consolidate and expand upon current Rule 1 and Rule 2; Chapter II contains rules and procedures specific to the filing and auditing of Accounts and the resolution of issues through the accounting process which encompasses and adds to the rules found in Rule 6, Rule 12 and Rule 13; Chapter III sets forth rules and procedures concerning the use and resolution of issues through citations and petitions which modifies and expands upon some of the rules currently found in Rule 3 and Rule 5; Chapter IV contains only rules relocated from Rule 12; Chapter V contains only rules relocated from Rule 14; Chapter VI provides rules relating to pre-hearing and hearing procedures which includes current Rule 3.6 and several new rules borrowed from civil practice; Chapter VII contains only current Rule 5.5; Chapter VIII contains only current Rule 3.7; Chapter IX provides new post-hearing procedures which dispense with current Rules 7.1 and 7.2, Chapter X contains the rules currently found as part of Rule 8; and Chapter XI sets forth rules relating to practice before the Register of Wills which relocates Rule 5.6 and Rule 6.12 and provides additional new rules.
As part of this proposal, all local rules will need to be revised, renumbered and reissued within one year from the adoption of the new Supreme Court Orphans' Court Rules. It is hoped that a period of one year will give each local Orphans' Court division sufficient time to review and reissue any local rules that it wishes to retain and draft any new local rules that it feels are necessary and appropriate.
The purpose of this proposal is two-fold: to provide uniformity in the Orphans' Court divisions across the Commonwealth; and where possible and reasonable, to conform Orphans' Court practice to civil practice. Following each rule in this proposal is a note indicating whether the proposed rule derives from a current Orphans' Court Rule, either in total or with modifications, or whether the rule derives from a rule of civil practice.
The Committee hopes by its proposal to provide a more uniform and efficient system for resolving disputes in Orphans' Court so that practitioners specializing in Orphans' Court matters can practice in multiple counties and so that other practitioners entering the division of the Orphans' Court either rarely or for the first time can still provide effective and competent representation to their clients. Improving the system for the good of the public and the efficient administration of justice is the ultimate goal.
[Pa.B. Doc. No. 13-654. Filed for public inspection April 12, 2013, 9:00 a.m.]
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